DETAILED ACTION
Background
The amendment dated May 26, 2026 (amendment) amending claims 8 and 16 and adding new claims 20-23 has been entered. Claims 1-8, 10, 12-16 and 18-23 as filed with the amendment have been examined. Claims 9, 11 and 17 have been canceled.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 20 and 22 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 20 and 22 each recite the limitation "the hydrophobic liquid" in line 1 of claim 20 and line 2 of claim 22. There is insufficient antecedent basis for this limitation in the claim. A hydrophobic liquid or its implied equivalent does not appear in claims 20 and 22 and any claim from which they depend.
The Office interprets the recited hydrophobic liquid as comprising a hydrophilic liquid.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-8, 10, 12-16 and 18-23 are rejected under 35 U.S.C. 103 as being unpatentable over US20190000112 A1 to Kizer (Kizer), of record, in view of EP3666081 A1 to Nijs (Nijs) and CN102630757 A to Li et al (Li).
All references to Li refer to the Clarivate machine translation, a copy of which was included in an earlier Office action.
Regarding instant claims 1-6, and 13-14 Kizer at [0096] and Example 5 ([0268]-[0269] and the accompanying Table) discloses a yogurt dairy product analog (“shelf-stable plant-based yogurt analogue” - claims 1 and 13-14) comprising (at [0100] of Kizer) a plant-based food composition of water (“hydrophilic liquid”), pea or legume protein (“pulse proteins” - claim 4), and 6.5 wt% of cane sugar (“fermentable sugar” at 3 to 10 wt% - claim 3; and as sucrose - claim 2) and 3.2 wt% of a corn starch/pectin. At [0103] Kizer discloses a plant-based yogurt analogue that is shelf-stable at room temperature of 3, 6, 9 or 12 months (claim 6). Example 5 of Kizer discloses methods comprising providing the plant-based food composition, homogenizing it at 140 °F (60 °C - claim 5) and 2000 psi or a pressure of 137.8 bar, heat treating the composition at 200-205 °F (93-95 °C), inoculating the heat-treated and homogenized plant-based food composition, fermenting the inoculated plant-based food composition until a pH of 4.4 to 4.5 is reached. Kizer in Example 5 discloses a plant-based food composition that is free from soy and dairy components. Further, Kizer at [0123] discloses homogenizing at 50 °C and between 30 and about 60 °C. The ordinary skilled artisan would have found it obvious in Kizer to homogenize its plant-based food composition at from 50 to 60 °C to enhance emulsification and stability because Kizer discloses the claimed homogenization temperatures as desirable for making a shelf-stable plant-based yogurt analogue.
The Office considers the claimed at least one native starch to include the corn starch of Kizer and any starch disclosed, without more, as “starch”. The Office interprets the term “native starch” broadly, as including any starch that has not been chemically or enzymatically treated as set forth in the instant specification at page 20, lines 13-15, including starches that comprise native starches in part.
The Office considers the claimed 20 to 35 °C in claim 6 to include room temperature.
Kizer does not disclose an example of (a) providing a plant-based food composition comprises from 3.5 wt% to 6.0 wt% of plant proteins, and, further, does not disclose (f) heat treating the plant-based yogurt analogue at a temperature from 80°C to 110°C for 5 seconds to 90 seconds. However, at [0097] Kizer discloses a shelf-stable plant-based yogurt analogue having at least 5 wt% of plant protein, which overlaps the claimed 3.5 to 6 wt%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan would have found it obvious in Kizer to make a shelf-stable plant-based yogurt analogue with any amount of protein disclosed at [0097], including 3.5 to 6 wt% of its shelf-stable plant-based yogurt analogue to enable use of plant-based food compositions having less plant protein, such as compositions containing nuts, or to limit the off-taste of the plant protein or to make a sweeter product.
Further, Kizer does not disclose (c) heat treating the plant-based food composition for 1 minute to 10 minutes as in claim 1, and does not disclose (f) heat treating the plant-based yogurt analogue product at a temperature from 80°C to 110°C for 5 seconds to 90 seconds as in claim 1. Further, Kizer does not disclose an Example of e) stopping the fermenting of the inoculated plant-based food composition when reaching a pH from 4.5 to 6.2, or at a pH of from 4.5 to 5.0 as in claim 18. And Kizer does not disclose a shelf-stable plant-based yogurt analogue having a pH of from 4.5 to 5.0 as in claim 19. However, Kizer at [0125] discloses sterilizing or pasteurizing its yogurt analogue product via a variety of known methods, such as (at [0125]) extended shelf life (ESL) treatment and combinations thereof with other treatments.
Nijs at [0002] discloses a dairy free yoghurt (“plant-based yogurt analogue”) and at Abstract and at [0023]-[0024] a method of making it by homogenizing it (at [0036]) at 65 to 180 bar and at 50 to 58 °C to give a smooth texture and heating it to from 90 to 99 °C (at [0027]) for a period of 12 to 300s, which overlaps the claimed 1 to 10 minutes. See MPEP 2144.05.I. At [0044] Nijs discloses then culturing the homogenized, heat treated plant-based food composition to a pH of between 4.1 and 4.8, which the claimed 4.5 to 6.2 overlaps. See MPEP 2144.05.I. Nils discloses at [0025] that its method provides improved culturing as microbiological value and a shelf-stable plant-based yogurt analogue having an improved texture. Further, at [0045] discloses culturing with acid forming cultures and limiting acid in culture to reduce acid taste.
Li at Abstract on page 1 discloses homogenizing and fermenting a bean milk (“analogue” composition) comprising water, beans, lactose and sugar (“a plant-based food composition”) using Lactobacillus. At Abstract, Li discloses that its plant-based diary analogue is shelf-stable when stored at normal temperature for 6 months At [0022] on page 3, Li discloses homogenizing at 15 to 25 MPa (150-250 bar), pasteurizing and cooling the fermented product in order to obtain better mouth feel and improve the stability of the product, wherein pasteurization comprises exposing the composition to a temperature of 85 to 86 °C for from 10 to 20 s.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Nils for Kizer to making its shelf-stable plant-based yogurt analogue by homogenizing its plant-based food composition and heating it from 1 to 10 minutes, followed by fermenting it to a pH of from 4.5 to 6.2 as claimed in claim 1 and a pH of from to 4.5 to 5.0 (in claim 18 and of the shelf-stable plant-based yogurt analogue in claim 19). Both references disclose shelf-stable, heat treated and homogenized plant-based yogurt analogues from acid producing cultures. The ordinary skilled artisan working in Kizer would have desired to shorten its period for heat-treating its homogenized plant-based food composition to 1 to 10 minutes as in Nijs to insure the performance of the culture in Kizer and maintain the texture of the shelf-stable plant-based yogurt analogue as in Nijs. Further, one working in Kizer would have desired to stop culturing at a pH of from 4.5 to 6.2 as in Nijs to control the acid taste of the product or control the amount of acid in its shelf-stable plant-based yogurt analogue.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Li for Kizer to follow the method of (f) heat treating the plant-based yogurt analogue product at a temperature from 80°C to 110°C for 5 seconds to 90 seconds. Both references disclose shelf-stable, homogenized and fermented plant-based dairy analogues. The ordinary skilled artisan working in Kizer would have desired to employ the heat treating method of Li by heating its fermented plant-based yogurt analogue at a temperature from 80°C to 110°C for 5 seconds to 90 seconds to inactivate the cultures in the product while enhancing storage stability.
Regarding instant claims 7-8 and 15-16, the Office considers the claimed shelf-stable plant-based yogurt analogue and product made by the method of claim 1 to be substantially the same thing as the product of Kizer in Example 5 as modified by Nijs and pasteurized as in Li. Accordingly, absent a clear showing as to how the firmness, viscosity and mean particle size of the Kizer as modified by Nijs and Li shelf-stable plant-based yogurt analogue differs from that of the shelf-stable plant-based yogurt analogue as claimed, the Office considers the disclosed shelf-stable plant-based yogurt analogue of Kizer as modified by Nijs and Li to have the claimed firmness (g) of at least 35g at 8°C as measured by using a texturometer and a viscosity of at least 0.4 Pa.s at 60 s-1 at 100 °C measured by using a rheometer as in claims 7 and 15, and to have the claimed mean protein particle size ranging from 1 to 70 µm, as measured at room temperature by using a laser diffraction analyzer, applying the Fraunhofer optical model, with a refractive index of 1.5 as in claims 8 and 16. See MPEP 2112.01.I.
Regarding instant claim 10, Kizer does not disclose after step (e), and prior to step (f) the addition of at least one natural thickening agent. However, Nijs at [0056] discloses adding a natural thickening agent to a homogenized product. The ordinary skilled artisan in Kizer would have found in obvious in view of Nijs to add the natural thickening agent after processing and would have desired to add a thickener at the end of processing as in Nijs both to properly adjust consistency in the product and avoid unintentionally having too much thickener.
Regarding instant claim 12, Kizer at [0241] discloses adding 0.7 to 1.5 wt% of a natural thickening agent.
Regarding instant claims 20 and 22, the Office interprets the recited hydrophobic liquid as comprising a hydrophilic liquid. As defined at Kizer at [0106]-[0109], Example 5 of Kizer discloses the exact same process of homogenizing an aqueous mixture comprising lipid and protein as is discloses in Kizer at [0139]-[0146] to make a plant-based cream or milk alternative. Accordingly, absent a clear showing as to how the plant-based intermediate at Example 5 of Kizer differs from the plant-based cream or milk alternative as claimed, the Office considers the homogenized intermediate in Example 5 of Kizer immediately before inoculation to be a plant-based cream or milk alternative as claimed. See MPEP 2112.01.I.
Regarding instant claims 21 and 23, Kizer does not specifically disclose a hydrophilic liquid that comprises a plant-based cream alternative and/or a plant-based milk alternative. at [0096] and [0151] discloses almond and coconut milk and further discloses at Example 5 including sunflower oil in the analogue prior to homogenizing. Further, Kizer at [0098] discloses including from 0 to 10 wt% of lipid, based on the total weight of the dairy analog. The Office considers the claimed almond cream, coconut cream or mixtures thereof as including a homogenized almond milk or coconut milk analog that includes additional lipid as in Kizer at [0098]. The ordinary skilled artisan would have found it obvious in Kizer to make a cream analog from any of its dairy analogs because Kizer discloses that it is desirable to add sufficient lipid in making its dairy analog to form a cream analog.
Response to Arguments
Regarding the position taken in the remarks accompanying the amendment dated May 26, 2026 (Reply), the positions have been fully considered but are not found persuasive for the following reasons:
Regarding the position taken in the Reply alleging that Kizer does not explicitly indicate that its yogurt dairy analog is free from soy and dairy components, respectfully Kizer at the Abstract and throughout its disclosure discloses products as dairy analogs which the Office considers as meaning that no dairy component is present (see, for example Kizer at [0097]-[0098] and [0128]); and, at Example 5 Kizer specifically discloses a yogurt analog with no soy or dairy ingredients. In addition, it does not matter if Kizer discloses some embodiments where soybean oil appears because soy components are not present in Example 5 of Kizer. Kizer must be read as a whole, including parts that do not accord with Applicants desired outcome or with the position taken by Applicants. See MPEP 2141.02.VI and W.L. Gore & Assoc., Inc. v. Garlock, Inc., 721 F.2d 1540, 220 USPQ 303 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984). The makeup of the composition in the Example 5 yogurt of Kizer is substantially the same thing as the claimed plant-based yogurt analog that is free of dairy and soy components. Accordingly, the burden remains on the Applicant to show that Kizer and Example 5 and Table 3 does not disclose or render obvious a plant-based yogurt analog that is free of dairy and soy components as claimed. See MPEP 2112.01.I.
Regarding the position taken in the Reply alleging that Nijs and Li do not remedy the alleged deficiencies of Kizer alleged above, in fact Kizer at Example 5 discloses a plant-based yogurt analog without soy or dairy components. Further, Nijs itself at [0047] discloses nut analogs of dairy products including almond and coconut analogs, both of which reasonably exclude soy and dairy components.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached on (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ANDREW E MERRIAM/ Examiner, Art Unit 1791
Prosecution Insights